Son v. Territory

• Decision Date: 30 July 1897
• Citation: 49 P. 923,5 Okla. 526,1897 OK 106
• Parties: SON v. TERRITORY.
• Court: Oklahoma Supreme Court

49 P. 923

5 Okla. 526, 1897 OK 106

SON v. TERRITORY.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

1. Where the prosecution rely for a conviction upon circumstantial evidence alone, and it is sought by the testimony of witnesses as to the conduct and acts of the deceased to show a motive upon the part of the accused for the killing, and it does not appear that such acts and conduct of the deceased were brought to the knowledge of the accused, held prejudicial error.

2. In order to establish a motive for the commission of a crime, it is essential that the facts upon which the motive is assigned shall be within the knowledge of the party accused.

Error from district court, Canadian county; before Justice John C Tarsney.

Alfred Son was convicted of murder, and he brings error. Reversed.

On the 25th day of April, 1895, the grand jury of D county returned an indictment against Bailey Son, Alfred Son, Dick Yeager (alias Zipp Wyatt), Dan McKinzie, and Grant Pettyjohn charging said parties with the murder of one Fred Hoffman. The case was taken upon a change of venue to Canadian county and the defendant Alfred Son tried upon the indictment. Upon the first trial the jury disagreed. The second trial resulted in a conviction of the defendant Alfred Son, the jury fixing the punishment at imprisonment for life. A motion for a new trial was overruled, and the sentence of the court pronounced in accordance with the verdict. To reverse the judgment of the lower court, the case is brought here, and numerous errors are assigned for the consideration of this court, only one of which we deem it necessary to consider. Upon the trial of the cause in the lower court, certain testimony offered by the prosecution went to the jury, over the objection of counsel for the appellant, and it is claimed that in admitting such testimony the court committed prejudicial error. In order to arrive at a proper understanding of what was involved in the testimony objected to, it is necessary to review at some length the facts as we gather them from a reading of the evidence. It appears that Fred Hoffman, the person whom the appellant is charged to have murdered, was killed by some person or persons on January 22, 1895. At the time of such killing, Hoffman was traveling from his home some distance southwest of Taloga, to that place; and his body was discovered at a point about 3 1/2 miles southwest of Taloga on January 26th, and when so discovered was in a place by the witnesses termed a "blowhole," in the sand hills near the South Canadian river, and about 75 to 100 feet from the road which Hoffman was traveling upon just previous to the time, as it appears from all the testimony and circumstances in the case, he was murdered. Hoffman was shot twice, as the evidence showed,--one bullet hole near the heart, and one wound by a bullet entering the mouth, and coming out through the top of the head. Within about 25 feet from where the body of Hoffman was found lay the dead body of his horse. The animal had been killed by a shot from a rifle or revolver, the bullet having passed through its neck. The first shot received by Hoffman was the one near the heart, as the one in the mouth appeared from the direction in which the bullet ranged to have been fired after Hoffman had fallen to the ground, and at such a close range as to powder-burn his face. In and about the vicinity of Taloga for a few days prior, and upon the morning of the day when it must be presumed from the evidence Hoffman was killed, there appeared a person styled by some of the witnesses as "Buck," by others as "Red Buck," while still others spoke of him as "Yeager," and one witness gave his real name as "Bert Collins." As developed by the evidence upon the trial, the person so styled and named was a notorious outlaw, --given, according to public rumor, to train and express robbery,--and upon whose head the express companies operating in this territory had set a price. This man was seen to be frequently in the company of Bailey Son and Alfred Son and Grant Pettyjohn, and was on apparent terms of intimacy with such parties. On the morning Hoffman was killed, Alfred Son, the appellant, left the town of Taloga driving two horses hitched to a single-seated buggy. In the buggy, and riding with him, was Collins, the outlaw, who was leading a gray horse. Both Son and Collins were armed,--the former with a revolver, and the latter with a revolver and a Winchester rifle. Son and Collins left town driving in a southwesterly direction along the same road which Hoffman was travelling in coming into the town. It developed in the testimony offered by the prosecution that Alfred Son was paying attention, as suitor, to a young lady, who had sent him a note asking him to come out to where she was staying and take her to town, and that the trip out, upon the part of Son, was to comply with this request. Just before Son left Taloga he procured a box of cartridges for his revolver, and was in and about a saloon with Collins, drinking, and in fact became considerably intoxicated, and shot off his revolver in the air, and so conducted himself that the stable man where Son procured the buggy with which to make the trip was about to take the same away from him, when Collins interposed, and induced him to permit Son to use the rig, upon Collin's statement that he would see that the team was properly cared for. Under the evidence it appears that Hoffman must have been killed about the time Son and the outlaw, Collins would, by traveling at an ordinary gait, meet him. One of the witnesses testified that she saw Hoffman cross the ford on the river, and about 15 minutes thereafter saw a buggy coming from an opposite direction. Hoffman was killed at a point about one-half mile from the ford. The buggy she saw was the one Son was riding in. At the time she saw the buggy the outlaw was not with Son, and the gray horse had also disappeared. About the time Son and the outlaw were in the vicinity of the place where Hoffman was killed, shots were heard, which, from their sound and the appearance of the smoke, were close to that point. When the body of Hoffman was discovered, on the 26th day of January, four days after he was presumed to have been killed, parties searching for a clew to the murderers found the track of a buggy which had left the road near the point where the body was found, driven up to the rim of the blowhole, a distance of from 25 to 50 feet from the road, and stopped; and, from the place where the buggy stopped, two persons had walked in the direction of the body, and near thereto, and then returned to the buggy. Two horses had been driven to the buggy, as was evidenced by their tracks. About 100 feet south of where the buggy stood were found the tracks of two more persons leading to and out from the blowhole where the body of Hoffman was found. About two hours after the shooting was heard in the vicinity of the place where the body of Hoffman was afterwards found, a party was seen, upon a gray horse, riding away from such point. In the fall of the year 1894 one express robbery had occurred at Woodward, Okl., and another at Canadian City, Tex., and the Wells-Fargo Express Company were trying to locate and arrest the persons engaged in such robberies. Hoffman was county treasurer of D county, and United States commissioner, and was also secretly trying to aid the express company in ferreting out the parties who committed the robberies referred to. The...